S-S

                                                                    Interim Decision #3257


Interim Decision #3257



                               In re S-S-, Applicant

                             Decided November 8, 1995

                          U.S. Department of Justice
                   Executive Office for Immigration Review
                       Board of Immigration Appeals

(1) In order to fully and fairly review a decision of an Asylum Office Director in asylum proceedings, the Board of Immigration Appeals must have before it the primary evidentiary
  matters relied upon by the initial adjudicator.
(2) When the credibility of an applicant for asylum and withholding of deportation is placed in
  issue because of alleged statements made at the asylum interview, at a minimum, the record
  of the interview must contain a meaningful, clear, and reliable summary of the statements
  made by the applicant. In the alternative, a record of the interview might be preserved in a
  handwritten account of the specific questions asked of the applicant and his specific
  responses or through transcription of an electronic recording.

FOR APPLICANT: Robert A. Perkins, Esquire, Chicago, Illinois

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Edward Weiss, General
Attorney

BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA,
HEILMAN, HOLMES, HURWITZ, VILLAGELIU, COLE, ROSENBERG, MATHON, and
GUENDELSBERGER, Board Members

HURWITZ, Board Member:

   In a decision dated May 23, 1995, the director, Newark Asylum Office,
denied the stowaway applicant’s requests for asylum and withholding of
deportation pursuant to sections 208 and 243(h) of the Immigration and
Nationality Act, 

 and 1253(h) (1994). The applicant has
appealed. The record will be remanded to the director. The applicant’s
request for oral argument before the Board is denied.

                                 I. BACKGROUND
   This case was last before us on June 16, 1994, at which time we affirmed a
decision of the acting assistant commissioner of the Immigration and Naturalization Service’s Office of Refugees, Asylum, and Parole, dated May 9,
1994, which denied the applicant’s original requests for asylum and withholding of deportation. The case was thereafter reopened upon motion by the

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Service and remanded for de novo proceedings. The director’s decision of
May 23, 1995, and this appeal followed. We are called upon to review the
director’s findings concerning the applicant’s credibility and, in so doing, to
assess the adequacy of the record as presently constituted.

                                 II. ISSUE
   What constitutes an adequate record for appellate review of the director’s
decision in a case involving an alien stowaway who applies for asylum and
withholding of deportation where credibility is at issue?

                              III. THE LAW
   An applicant for asylum or withholding of deportation bears the evidentiary burdens of proof and persuasion in connection with any application
under section 208 or 243(h) of the Act. Matter of Acosta, 

(BIA 1985), modified on other grounds, Matter of Mogharrabi, 

 (BIA 1987). To be eligible for asylum under section 208 of the Act, an
alien must show either past persecution or a well-founded fear of future persecution in a particular country on account of race, religion, nationality,
membership in a particular social group, or political opinion. An applicant
for asylum has established a well-founded fear if a reasonable person in his
circumstances would fear persecution on account of one of the grounds enumerated in the statute. Matter of Mogharrabi, supra; see also Matter of Chen,

 (BIA 1989) (relating to past persecution); 

(b)(2) (1995) (defining well-founded fear of persecution as requiring “reasonable possibility” of actual persecution). The burden of proof
required to establish eligibility for asylum is lower than the clear probability
standard of eligibility required for withholding of deportation. See INS v.
Stevic, 

 (1984); see also INS v. Cardoza-Fonseca, 

(1987).

                  IV. THE DIRECTOR’S DECISION
   In determining that the applicant had not established his persecution
claim, the director expressed reservations with respect to the applicant’s
credibility. The director based his adverse credibility finding in large part on
discrepant information provided by the applicant in his first interview with an
asylum officer which was conducted on April 26, 1994, and his second interview, which was conducted on November 4, 1994. The director further noted
that information provided in each of these interviews was inconsistent with
information provided by the applicant on his Request for Asylum in the
United States (Form I-589).




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           V. THE APPLICANT’S CREDIBILITY AND THE
                  ADEQUACY OF THE RECORD
    On appeal, the applicant argues, inter alia, that the director erred in using
the information from the first interview in making an adverse credibility finding. Counsel for the applicant submits that the first interview was flawed,
and the record of it inadequate, due to faulty translation and lack of
transcription.
    As noted earlier, the burden is upon the applicant for asylum to establish
the basis for his claim. A persecution claim which lacks veracity cannot satisfy the burden of proof and persuasion necessary to demonstrate eligibility
for asylum and withholding relief. See generally Matter of Mogharrabi,
supra, at 445 (BIA 1987); 

(a), 208.16(b) (1995). In this
case, the credibility of the applicant is at issue and crucial to the resolution of
this appeal. We have concluded that the present record provides an inadequate basis for assessing the adverse credibility finding made by the director.
    The director’s notice of intent to deny dated January 12, 1995, contained
an account of what transpired at the applicant’s interviews with the asylum
officer. The applicant disputes the facts reflected in that notice. The record
also contains notes that apparently were made contemporaneously with each
of the applicant’s interviews on April 26, 1994, and on November 4, 1994.
However, these notes are obviously the informal, personal notations of the
asylum officer that were never intended to be a formal summary of the interview. They are randomly organized, cryptic to all but the note-taker, and partially illegible. Consequently, they are of little value in evaluating the
applicant’s credibility. We are asked to consider comparatively the information provided by the applicant in these interviews and to assess the applicant’s veracity, but we find the records of the interviews inadequate for
appellate review. Consequently, we are unable to enter a decision in this case
on the basis of the record as now constituted.
    In order to fully and fairly review a decision entered in a case, this Board
must have before it the primary evidentiary matters relied upon by the initial
adjudicator. For example, in the adjudication of appeals taken in deportation
proceedings, the record will normally contain a verbatim transcript of the
proceedings below.1
    When, as in these asylum proceedings, the applicant’s credibility is placed
in issue because of alleged statements made at the asylum interview, our

   1 An exception to this rule occurs where it appears that an appeal may be summarily

dismissed under 

(d)(1-a)(1995). In that instance, either party may request that the
Immigration Judge forward the case to the Board without a transcript. Thereafter, if the
Immigration Judge determines that a transcript is necessary for the proper adjudication of the
appeal, he may direct that a transcript be included. This decision may not be appealed. Matter
of Torre, 

 (BIA 1984), modifying in part Matter of Gamboa, 

(BIA 1972).

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review requires a reliable record of what transpired at that interview. This
record might be preserved in a hand-written account of the specific questions
asked of the applicant and his specific responses to those questions. Such
question and answer statements could be signed by the applicant as an accurate summary of the interview. Alternatively, a suitable record could be produced through transcription of an electronic recording of the asylum
interview. At a minimum, the record must contain a meaningful, clear, and
reliable summary of the statements made by the applicant at the interview.
The Board needs to know what transpired in the proceedings before the asylum officer before we can evaluate questions with respect to credibility arising from the interview. Only then can we determine whether the notice of
intent to deny accurately and thoroughly informed the applicant of all
adverse considerations which serve as the basis for the intended denial. See 

(b)(3) (1995); see also 

(b)(16) (1995); cf.
Matter of Arias, 

 (BIA 1988). This record will also be indispensable to the applicant in preparing his rebuttal to the notice of intent to
deny, and in making his arguments on appeal.
   As the present record provides an inadequate basis for determining credibility and therefore fairly adjudicating the applicant’s persecution claim, the
record will be remanded to the director for whatever further action is required
to address the concerns discussed herein.
   ORDER:           The record is remanded to the Asylum Office director
for further proceedings consistent with the foregoing opinion and the entry of
a new decision.
   Board Member Lauri S. Filppu did not participate in the decision in this
case.




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